Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118

FEDERAL COURT OF AUSTRALIA

Fakatava v Minister for Immigration & Multicultural Affairs

[2000] FCA 118

IMMIGRATION – appeal – whether error of law in failing to consider "back door scheme" – whether error of law in ignoring UN Declaration of the Rights of the Child – whether primary judge failed to follow his conscience – whether failure to take into account policy involves improper use of power, breach of duty or actual bias – whether refusal of a subpoena was a "cover up" –.

Judiciary Act 1903 (Cth), s 78B

Migration Act 1958 (Cth)

Migration Regulations Schedule 3 cl 3001, 3002

Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 117 applied

Minister for Immigration & Multicultural Affairs v Teoh (1995) 183 CLR 273 considered

Sikahele v Minister for Immigration & Multicultural Affairs [1998] FCA 1453 followed

Holani v Minister for Immigration & Multicultural Affairs [1999] FCA 484 referred to

Holani v Minister for Immigration & Multicultural Affairs [1999] FCA 707 referred to

Re East; Ex parte Nguyen (1998) 159 ALR 108 referred to

TAUFA FAKATAVA v MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

N 1346 of 1999

CARR, SACKVILLE & R D NICHOLSON JJ

16 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1346 OF 2000

On appeal from a Judge of the Federal Court of Australia

BETWEEN: TAUFA FAKATAVA

Appellant

AND: MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

Respondent

JUDGES: CARR, SACKVILLE & R D NICHOLSON JJ

DATE: 16 FEBRUARY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Non-constitutional grounds 1 This is an appeal from a judgment of Cooper J given on 28 October 1999. The effect of the judgment was to dismiss an application by the appellant for review of a decision of the Immigration Review Tribunal ("the IRT") given on 27 April 1999. The IRT decision affirmed a decision by a delegate of the respondent made on 18 June 1998 refusing the applicant a Change in Circumstance (Residence) (Class AG) Subclass 806 (Family) Visa under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a citizen of Tonga. She entered Australia on 23 December 1992 on a visa which expired on 24 March 1993. She has two children born in Australia (on 4 August 1996 and 4 April 1997 respectively). On 17 October 1997 she lodged her application for the above-mentioned class of visa. The basis of her application was as a "special need relative" in respect of her two children born in Australia. 3 The foundation of the reasoning of the IRT was that the appellant was unable to satisfy one of the essential criteria for the grant of a Subclass 806 Family (Residence) Visa, being that specified in clause 3002 of Schedule 3 to the Migration Regulations 1994 when read with clause 3001(2)(c). These clauses require, in effect, that a visa application must be lodged within 12 months of the appellant having substantive lawful status. The IRT found that the appellant last held a substantive visa on 24 March 1993. As the application was not lodged until 17 October 1997, the appellant could not satisfy the requirement imposed by cl 3002. The IRT stated the criterion was mandatory and there was no discretion to waive it. Accordingly the IRT considered it had no alternative but to affirm the decision under review. 4 On the application to review before Cooper J, thirteen grounds of review were relied upon. Cooper J dealt with these in seven categories. It will be necessary to refer to his Honour's reasons in the course of dealing with the present grounds of appeal.